Kimpura Pty Ltd v JWH Group Pty Ltd

[2004] WASCA 134

KIMPURA PTY LTD & ANOR -v- JWH GROUP PTY LTD & ANOR [2004] WASCA 134

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASCA 134
Court:	THE FULL COURT (WA)
Case No:	FUL:56/2004	Heard:	13 MAY 2004
Coram:	PULLIN J	Delivered:	13/05/04
No of pages:	6	Judgment Part:	1 of 1
Result:	Application for leave to appeal dismissed
Category:	B
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Parties:	KIMPURA PTY LTD (ACN 006 048 479) J-CORP PTY LTD JWH GROUP PTY LTD RURAL BUILDING COMPANY PTY LTD
Catchwords:	Practice and procedure Application for leave to appeal from costs order
Legislation:	Supreme Court Act 1935, s 37, s 60(1)(e)
Case References:	House v The King (1936) 55 CLR 499 Permanent Building Society v Wheeler (No 2) (1993) 10 WAR 569 Phillips Fox v Westgold Resources [2000] WASCA 85 Wilson v Metaxas [1989] WAR 285 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : KIMPURA PTY LTD & ANOR -v- JWH GROUP PTY LTD & ANOR [2004] WASCA 134 CORAM : PULLIN J HEARD : 13 MAY 2004 DELIVERED : 13 MAY 2004 FILE NO/S : FUL 56 of 2004 BETWEEN : KIMPURA PTY LTD (ACN 006 048 479)

First Applicant

J­CORP PTY LTD
Second Applicant

AND

JWH GROUP PTY LTD
First Respondent

RURAL BUILDING COMPANY PTY LTD
Second Respondent

Catchwords:

Practice and procedure - Application for leave to appeal from costs order

Legislation:

Supreme Court Act 1935, s 37, s 60(1)(e)

(Page 2)

Result:

Application for leave to appeal dismissed

Category: B

Representation:

Counsel:

First Applicant : Mr B D Luscombe
Second Applicant : Mr B D Luscombe
First Respondent : Mr M S Van Brakel
Second Respondent : Mr M S Van Brakel

Solicitors:

First Applicant : Mallesons Stephen Jaques
Second Applicant : Mallesons Stephen Jaques
First Respondent : Clayton Utz
Second Respondent : Clayton Utz

Case(s) referred to in judgment(s):

House v The King (1936) 55 CLR 499
Permanent Building Society v Wheeler (No 2) (1993) 10 WAR 569
Phillips Fox v Westgold Resources [2000] WASCA 85
Wilson v Metaxas [1989] WAR 285

Case(s) also cited:

Nil


(Page 3)

1 PULLIN J: This is an application by the defendants for leave to appeal against my order concerning the costs of the action. The application is made pursuant to s 60(1)(e) of the Supreme Court Act 1935 which provides that no appeal shall lie to the Full Court, without the leave of the Judge making the order, from the order of a Judge made as to costs only, which by law are left to the discretion of the Judge.

2 The defendants seek a review of the costs order. I am anxious to allow such a review if possible. However, it would be wrong to grant leave simply because of that anxiety. I must be governed by principle in making my decision about whether to grant leave.

3 The principles which apply to the grant of leave are set out in Wilson v Metaxas [1989] WAR 285, and at 294 of that decision, the Chief Justice said:

"The object of the requirement that an appeal lies from an interlocutory order only by leave is to reduce appeals from these orders as much as possible. … The jurisdiction to hear the appeal is founded upon the grant of leave. The grant of leave lies in the discretion of the court. In general, however, it must be shown that the decision in respect of which leave is sought was wrong, or at least attended with sufficient doubt to justify the grant of leave and, in addition, that substantial injustice would be done by leaving the decision unreversed …"

4 Although that was a decision dealing with interlocutory orders in general and not a costs order, nevertheless those principles govern this application.

5 It can be taken that if this is a case where there is doubt as to the correctness of the decision, then substantial injustice would be done by leaving the decision unreversed because it is quite apparent that both parties have spent a large amount on legal costs. My impression would be that the legal costs probably exceed by a considerable amount the amount which was being fought about.

6 The question is whether or not it can be said that my decision is either wrong, or attended with sufficient doubt to justify the grant of leave.

7 In the proposed grounds of appeal set out in the draft notice of appeal there is a reference to errors of law, but the errors of law which have been identified are not reflected in the submissions that were made by counsel

(Page 4)

for the applicant. Notwithstanding that deficiency, I am prepared to consider the grounds which have been orally outlined.

8 I understand the points which have been raised by counsel for the applicant to be three in number. The first point is that my assessment of the outcome, the weighting of the issues in the case, and the relative success of the parties based upon the objectives of the parties in the litigation reflect error on my part. If there is error, it must be of the kind referred to in the decision of House v The King (1936) 55 CLR 499 where it was said at 505:

"If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so."

9 The assessment of the outcome, the weighting of the issues and relative success of the parties, required me to weigh up these factors and make a decision. It is not suggested in the submissions that I failed to take into account relevant considerations or that I took into account irrelevant considerations.

10 There was a suggestion that I erred because of my assessment of the fundamental objectives of the plaintiffs in the litigation. The problem with that submission is that this was a case fought without pleadings. That gave rise to difficulties which might not have arisen if there had been pleadings. I was left with the writ, the contentions of the parties and the claim for relief to identify the issues and the objectives of the plaintiff. In my opinion, there is no error which appears in relation to this point and in my opinion there is no sufficient doubt revealed which would warrant the grant of leave in relation to this proposed ground. I must be careful not to grant leave in a case that does not justify it. To do so would require the members of the Full Court to spend time familiarising themselves with all of the issues that arose for the purpose of determining whether or not the assessment about the relative success of the parties was in error. An error of the kind mentioned in House v The King (supra) must be revealed before any leave should be granted. I see no basis for the grant of leave in relation to this point.

(Page 5)

11 The second point is said to raise a question of law. The defendants' argument runs as follows. Section 37 of the Supreme Court Act provides that costs shall be in the discretion of the Court or Judge, but it opens with the words: "Subject to the provisions of this Act and to the Rules of Court". The applicant submits that O 66 r 2(a) provides for mandatory orders to be made in accordance with its terms. Order 66 r 2(a) reads:

"where the statement of claim contains more than one cause of action and the plaintiff succeeds on one or more causes of action and the defendant succeeds on another or others, costs shall be allowed to the plaintiff on the cause or causes of action on which he succeeds and to the defendant on that or those on which he succeeds, in the same manner as if separate actions had been brought …"

12 The applicant submits that this is an inflexible mandatory rule. This was a case where there were separate causes of action and as a result the applicant submitted that I was obliged to make orders in accordance with O 66 r 2.

13 The third point raised is that if the second point is good, then I made an error of law in analysing the outcome of the case by reference to issues and areas of dispute, rather than by analysing the causes of action and who succeeded or failed in relation to the causes of action. This latter point therefore depends upon success on the second point.

14 The problem with the argument in support of the second point is that O 66 r 2 opens with the words, "In the absence of any special order". Section 37 says that the section is subject to the rules, and while O 66 r 2(a) in the body of subpar (a) provides for what orders shall be made in the circumstances set out, O 66 r 2(a) is prefaced by the words, "In the absence of any special order". In my view these words mean that the Court does retain a discretion.

15 The expression "special order" appears elsewhere in O 66. It appears for example in O 66 r 12. It is used there in a context which could not possibly apply to O 66 r 2(a). Whenever the expression "special order" is used in the rules, it appears that there is a general provision which will apply in all cases unless the court exercises its discretion to take make a different order. In my view, that is the only interpretation that could be put upon the opening words of O 66 r 2. That means that if the Court does not wish to make orders in accordance with O 66 r 2(a), it may decline to do so. It retains a discretion.

(Page 6)

16 There are authorities which support my conclusion that, notwithstanding O 66 r 2(a), the Court does retain a general discretion. See the decision of Anderson J in Permanent Building Society v Wheeler (No 2) (1993) 10 WAR 569. See also Phillips Fox v Westgold Resources [2000] WASCA 85. I do not consider that Phillips Fox v Westgold Resources is binding in relation to the particular argument that arises today because it was not addressed in that decision. As a result, what Owen J said in Phillips Fox v Westgold Resources decision is not binding upon me, but I agree with his Honour's conclusion and with the conclusion of Anderson J in Permanent Building Society v Wheeler (No 2) to the effect that the Court has a general discretion when dealing with cost issues. This is so, notwithstanding the provisions of O 66 r 2(a).

17 For those reasons, I dismiss the application for leave to appeal.